HOARDING AND BLACK MARKETING OF ESSENTIAL MEDICINES AND OXYGEN: THE NEW SOCIAL FUNGUS EPIDEMIC - The Daily Guardian
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HOARDING AND BLACK MARKETING OF ESSENTIAL MEDICINES AND OXYGEN: THE NEW SOCIAL FUNGUS EPIDEMIC

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Reeling under the second wave of the pandemic, the country unexpectedly encountered the new social fungi drilling a black hole in the society and the economy. Hoarding and black marketing have emerged as a novel social fungus competing with the COVID – 19 virus, going ahead in the race of despicability. When the country was facing institutional lack of medical supplies, some people found peace in extending a helping hand, while others saw it as a breeding ground to profit from the helplessness of the society.

In common parlance, ‘Black marketing’, is an economic activity that occurs outside of Government – sanctioned channels, in a clandestine market, in non – compliance of the set rules. ‘Hoarding’ is the purchase of any commodity in large quantities with an intention to resell it at inflated prices, creating an artificial scarcity in the market with creates an effect of monopoly being exercised by the hoarder who sells the commodity at higher prices. Hoarding and black marketing being interconnected and intertwined to each other are means to maximize profits using unfair and unauthorised commercial routes. 

In the past few weeks, people have witnessed reports of multiple incidences of oxygen cylinders, concentrators and essential drugs being hoarded, sold for exorbitant places. A pertinent question to be raised as a result of the current state of affairs in the country is why are we not able to curb the malpractices of hoarding and black marketing. In this regard, it becomes relevant to analyse the regime in place to deal with the rise of hoarding and black marketing of medical essentials. 

WHAT LEGISLATIVE REGIME DO WE HAVE TO CURB THESE MALPRACTICES?

Black marketing or hoarding have not been defined under Indian law. They have to be understood from a composite reading of various statutes, rules and regulations. The Essential Commodity Act, 1955(“ECA”) gives power to the Central Government to control the production, supply and distribution of commodities that it enlists as essential commodity from time to time, through which price control can be exercised on them, non-compliance of which leads to imprisonment.

In exercise of powers under the ECA, the Drugs (Price Control) Orders, 2013(“DPCO, 2013”) was notified by the Central Government which lays down maximum retail price at which the drug shall be sold to the ultimate consumer. The National Pharmaceuticals Pricing Authority(“NPPA”), under the Ministry of Chemicals and Fertilizers, Government of India, has been designated as the authority under the DPCO, 2013 to enforce the provisions of the aforesaid Order, regulate the pricing of drugs and ensure availability and accessibility of medicines at affordable prices. Therefore, selling of any drug in excess of the MRP is contravention of the DPCO, 2013 is punishable under the ECA. In addition to this, the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 can also be enforced to curb black marketing.

The Central Government had notified that with effect from April 1, 2020, all medical devices used for the diagnosis, prevention, monitoring, treatment or alleviation of any disease or disorder, for the investigation, replacement or modification or support of the anatomy or of a physiological process, supporting or sustaining life shall be covered under the definition of “drugs” under the Drugs and Cosmetics Act, 1940 and would be governed by the provisions of the DPCO, 2013, thereby bringing within its ambit oxygen concentrators and cylinders.

The classification of COVID-19 as an “epidemic disease” under the Epidemic Diseases Act, 1897, allows for punishment under the IPC for disobedience to orders promulgated by public servants. Further, these malpractices also attract offences of cheating, dishonestly inducing delivery of property and criminal conspiracy under the provisions of the IPC.

Despite so many overlapping statutory provisions, in addition to the penal provisions of IPC, these laws have failed to act as a deterrent to curb these malpractices thereby calling for significant amendments in these laws to evolve with the changing times and trends and devise a stricter mechanism to tackle a pandemic.

HOW HAS JUDICIARY ESSAYED ITS ROLE DURING THE PANDEMIC?

In these desperate times of frenzy, the Judiciary all over the country has risen to the occasion providing a ray of hope to the citizens. Courts all over the country, well within their powers, have intervened and taken cognizance of issues of hoarding and black marketing through a catena of orders.

The Delhi High Court acknowledged that shortage of supplies could be attributed to pilferage taking place in the hospitals’ pharmacies by the medical staff. In order to avoid such practices, the Court suggested issuing permits to hospitals on the basis of their opening stock and doses administered daily, in proportion to which the replenishment would take place to keep a check on the hoarding of the medical supplies. The Delhi High Court on April 27, 2021 gave specific directions and held that stocks and sale of covid essential drugs should be recorded and subjected to random audit checks to check black market.

With the regular seizures of the hoarded and blackmarketed medical drugs and equipment, the Delhi High Court vide its order dated April 29, 2021 had directed the concerned District Commissioners to release the seized medicinal drugs and oxygen cylinders immediately to the hospitals without waiting for further orders so that they do not lose their efficacy and become non-usable. The Madhya Pradesh High Court has also directed the Government to distribute seized Remdesivir to the hospitals.

The Hon’ble Supreme Court in its suo moto order of April 30, 2021, highlighted the selling of several critical drugs, used for COVID-19, at inflated prices or in fake form and directed the Central Government to clamp down on this practice.

The Delhi High Court, on May 02, 2021, directed the state government that none of the equipment, or medicines used in the treatment of COVID-19 disease to be sold above the MRP and held that any person, who is found to be indulged in such activities shall have independent contempt action initiated against him. The Jharkhand High Court has also taken suo moto cognizance of the black marketing of Remdesivir and Favipiravir and directed the state Government to control the black marketing of life saving drugs.

Thus, with the much-appreciated intervention of the Courts across the country, State police and administrative actions to curb hoarding and black marketing were propelled leading to numerous searches and seizures by the police.

WHAT ACTIONS ARE BEING TAKEN TO CONTROL THESE MALPRACTICES?

Police all over the country have ramped up their search and seizure operations to seize oxygen concentrators and other essentials, registering FIRs under the Indian Penal Code, 1860, the Epidemic Diseases Act, 1897, and the Essential Commodities Act, 1955 to prevent and deter people from indulging in such malpractices.

The NPPA has been issuing various notifications from time to time for fixing the retail prices of formulations used in drugs under the Drugs Prices Control Order.

The NPPA vide notification dated June 29, 2020 called for the MRP of Pulse Oximeter, Oxygen Concentrator and laid that the MRP of the medical devices cannot be increased more than 10% in a year. To further monitor the prices of these medical devices, vide notification dated May 15, 2021, the importers/ manufactures were directed to submit the MRP details by May 22, 2021 and comply with the 10% increase rule, failing which action may be initiated for violation of DPCO, 2013 read with ECA.

The Central Drug Standards Control Authority on April 10, 2021 directed all the State/ UT Governments to keep strict vigil especially at sensitive places, to take stringent action against hoarding, black marketing and overcharging for Remdesivir by conducting special drive of monitoring and investigation to prevent any such incidence. The NPPA on April 17, 2021 revised the price for Remdesivir to be below Rs. 3500 per vial.

Additionally, the Drugs Control Department vide its circulation dated May 7, 2021 directed all the retailers, whole sellers, distributors not to sell over and above the notified price, MRP and also to refrain from dealing in non – permitted, unauthorised manner and not indulge in their black marketing.

The Ministry of Chemicals and Fertilisers, Government of India vide its press release dated May 19, 2021 has assured that the Government is monitoring supply of each COVID -19 essential drug by ramping up home production and increasing imports. The availability of these drugs is being monitored by implementing the three-pronged strategy of Supply Chain Management, Demand Side Management and Affordability.

For the equitable distribution and to keep a check, the Government has requested States to put in place a mechanism for its supplies amongst Government and Private Hospitals and health – care agencies, to publicise in the State the ‘Point of Contact’ for Private and Government Hospitals to obtain the drug for this allocation.  Further, the Drug and Pricing Authority have been tasked with coordination with manufacturers to enhance production, get data about current stock, current capacities, projected production and allocation charts based on the production capacity and number of patients has also been prepared state wise to keep the demand – supply in control.

WHAT CHALLENGES STILL REMAIN TO BE CONQUERED?

While the country started reporting a decline in the number of cases, positivity rate and mortality rate, another challenge in the form of Mucormycosis or Black Fungus has hit the country. The Black Fungus has already been declared as an epidemic disease in various states. We are hopeful that we as citizens do not meet with the same fate of the second wave in the times to come.

What is of utmost significance in containing the COVID – 19 pandemic is the execution and implementation of the above directions in reality. Although guidelines have been issued by the Courts and Government to regulate the production, supply, allocation, prices and enforcement agencies have been directed by the Drug Controller General of India to take immediate action on incidence of black marketing, hoarding and overpricing yet the harsh truth and grim reality is not hidden from anyone.

While hospitals were facing dire shortage of medical supplies, India also saw a growing number of politicians and celebrities distributing the same to the general public. Instances such as these do raise pertinent questions as to how they managed to get hold of the same when hospitals themselves were running short on these essential supplies. The Bombay High Court recently raised questions from State as to how these celebrities were able to procure COVID related drugs. In another case, the Delhi High Court, whilst noting that the intentions were good, held that politicians cannot hoard medical supplies and the same should be surrendered to the Directorate General of Health Services while urging the Delhi Police to stand up to the occasion.

WHERE ARE WE HEADING?

The second wave of the pandemic has been riddled with difficulties; firstly, the abysmal shortage of supply of medical essentials; and secondly, the parallel black market of these commodities. While the former paved the way for the genesis of the latter; black markets have acted as a death knell to an already debilitating healthcare system.

With the advent of these social fungi, if such issues are not dealt with utmost priority in the second wave itself, there is a chance of them spilling over in the third wave. This will not only be a burdensome situation for the government but also a troublesome situation for the public at large.

At this time of distress, every individual needs to introspect that where is the collective conscience of the society heading to. The time has come to ponder about this and find answers before the imminent, dreaded third wave hits us and fight back collectively as a country to emerge victorious as humans, above all other acquired titles. 

We collectively fail and we collectively rise!

Assisted by Snehil Singh and Vatsala Parashar

The second wave of the pandemic has been riddled with difficulties; first, the abysmal shortage of supply of medical essentials; and second, the parallel black market of these commodities. While the former paved the way for the genesis of the latter; black markets have acted as a death knell to an already debilitating healthcare system. With the advent of these social fungi, if such issues are not dealt with utmost priority in the second wave itself, there is a chance of them spilling over in the third wave. This will not only be a burdensome situation for the government but also a troublesome situation for the public at large.

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Lalu Yadav criticises Amit Shah for attacking Bihar govt

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A day before he meets Congress leader Sonia Gandhi and Chief Minister Nitish Kumar, RJD President Lalu Prasad Yadav on Saturday criticised Home Minister Amit Shah for his attack on the Bihar government coalition and emphasised the need for Opposition unity.

“Amit Shah has utterly lost his mind.  His administration has been overthrown in Bihar. The BJP will also lost in 2024. That is why he is sprinting there (Bihar) and speaking of jungle raaj. What did he do when he was in Gujarat,” Yadav said.

The former chief minister of Bihar said that “Jungle raaj” was present in Gujarat when he was there.

On Sunday evening, Kumar and Yadav will probably meet Sonia Gandhi, the president of the Congress.

We are making every effort for Opposition unity,” Yadav, who has been battling poor health, said, adding this will the agenda of their meeting.

The Bihar chief minister was slammed by Shah on Friday for allegedly betraying the BJP and attempting to advance his prime ministerial ambitions while “sitting in the laps of Congress and RJD.”

At a rally in Purnea, Shah predicted that the Kumar-Lalu Prasad jodi would be destroyed (soopda saaf) in the 2024 Lok Sabha elections and that the BJP will win a majority by itself in the state assembly elections the following year.

In response, Yadav said, “Amit Shah bilkul paglaye hue hain” ( Amit Shah is absolutely insane).

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Hollywood star John Cusack supports ‘Bharat Jodo Yatra’, says solidarity to all anti-fascists

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Hollywood star John Cusack on Saturday showed his support to the Congress’s Bharat Jodo Yatra, a campaign to reach out to the general public. Cusack tweeted: “Indian parliament member Rahul Gandhi is walking to Kashmir from Kerala.” This was written weeks after the march, which intends to go over 3,500 kilometres across the nation, began.

Expressing his support for Congress leader Rahul Gandhi’s Bharat Jodo Yatra on Saturday, Hollywood actor Cusack stated that he stands in solidarity with “anti-fascists everywhere.”

Cusack, the leading man in blockbusters like “Serendipity,” “High Fidelity,” “Con Air,” and “2012,” has been outspoken on social media regarding a number of international issues.

Jairam Ramesh, a Congress’s spokesman, shared the post of the Cusack’s tweet.

The actor posted on Twitter that Indian parliament member Rahul Gandhi is walking from Kerala by foot to Kashmir. Cusack responded to a user who complimented him for backing Gandhi’s cause by saying, “Yes – solidarity – to all anti fascists everywhere!” The actor has previously offered support to the farmers’ and students’ demonstrations against the Citizenship (Amendment) Act and three agriculture legislation, respectively.

Rahul Gandhi began his march from Kanyakumari, the southernmost point of the nation’s mainland, and he is currently travelling through the southern states. A verbal battle between the BJP and the Congress has been ongoing since the yatra got underway.

Gandhi has often emphasised that the Yatra is a fight against the BJP’s poor leadership. He has brought up concerns including unemployment, inflation, and women’s safety. However, following numerous polling failures over the past few years, the party is also focusing on the 2024 national elections during the mass contact programme.

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Assam CM’s three-day Chintan Shivir to start today

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Assam Chief Minister Himanta Biswa Sarma

The three-day Chintan Shivir, which is due to start today, will be attended by the Cheif Minister Himanta Biswa Sarma as well as all other ministers and senior secretaries of various state government agencies.

The state administration will talk about the departments’ ongoing activities during the brainstorming session. In the shivir, it is probable that the departments’ five-year plans and road map will be prepared.

In August of this year, a cabinet meeting presided over by the CM decided to organise the three-day shivir.

Around 2 pm, the Chief Minister of Assam will attend the Chintan Shivir’s opening session.

All of the BJP’s ministers and legislators from its ally party are likely to attend the Chintan Shivir.

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Resort of BJP leader’s son arrested for 19-year-old’s murder demolished at midnight

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Chief Minister Pushkar Dhami ordered the demolition of a resort owned by the accused amid outcry over the reported murder of a 19-year-old woman in Uttarakhand by a BJP leader’s son.

Abhinav Kumar, special principal secretary to the CM, said that demolition was underway at the Vanatara Resort in Rishikesh owned by Pulkit Arya on late Friday night on the orders of Dhami.

The son of Vinod Arya, a prominent BJP figure from Haridwar and a former leader of the Uttarakhand Mati Kala Board, is Pulkit Arya.

Three individuals, including Arya, were arrested on Friday for the alleged murder of a woman who worked as a receptionist at his resort on Chilla Road in the Yamkeshwar region. In Pauri Garhwal, Uttarakhand, the woman went missing earlier this week, according to authorities.

Arya was arrested along with Saurabh Bhaskar (35) and Ankit Gupta (19) and all of them have confessed to the crime, police added.

Bhaskar was a manager at the resort, and Gupta was his assistant, according to senior superintendent of police (SSP) Yashwant Singh of Pauri Garhwal.

The senior police officer said Arya on September 20 had approached police with a missing complaint to mislead the investigation.

But once the victim’s father was approached by the woman’s friend with a WhatsApp message implying the trio’s involvement, he began to wonder about Arya and the staff’s involvement.

“During the course of investigation, police learnt the accused and the woman had gone to Rishikesh on Sunday. While on their way back, Pulkit and the woman entered into an argument following which the accused threw her into a canal in Chilla,” the SSP said.

The victim’s body was found in the Chilla Canal, and her relatives were contacted to identify it, according to a representative for the State Disaster Response Force (SDRF).

The BJP leader’s son had pressurized Ankita to enter into prostitution, a police officer said who did not want to be named.

The accused have been booked under Sections 302 (murder), 201 (causing disappearance of evidence of offence, or giving false information to screen offender) and 120-B (criminal conspiracy) of the Indian Penal Code.

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Policy & Politics

20th Meeting of Prosecutors General of the Shanghai Cooperation Organisation (SCO) Member States organized at Astana, Kazakhstan

Tarun Nangia

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20th Meeting of Prosecutors General of the Shanghai Cooperation Organisation (SCO) Member States organized at Astana, Kazakhstan

The 20th Meeting of Prosecutors General of the Shanghai Cooperation Organisation (SCO) Member States was held on 23rd September, 2022 in Astana, Kazakhstan. The Indian delegation attended the meeting in Astana, Kazakhstan under the leadership of:-
Tushar Mehta, Learned Solicitor General of India, Department of Legal Affairs
Dr. Anju Rathi Rana, Additional Secretary, Department of Legal Affairs
As precursor to the event on 23rd September, 2022 Dr. Anju Rathi Rana, Additional Secretary, Department of Legal Affairs, Ministry of Law & Justice attended the Meeting of the Experts Group for the 20th Meeting of the Prosecutors General of Shanghai Cooperation Organisation (SCO) Member States on 8th and 13th September, 2022. The Meeting of the Experts Group reaffirmed strengthening of cooperation at bilateral and multilateral levels between SCO Member States. The Experts group discussed issues pertaining to the growth of transnational economic crime in the world and thier experience of recovery of proceeds of crime from the states. The discussion between the Member States was held in a constructive and friendly atmosphere fostering the spirit of mutual trust and understanding.
The 20th Meeting of Prosecutors General was attended by the Solicitor General of the Republic of India Shri Tushar Mehta, Prosecutor General of the Republic of Kazakhstan Asylov B.N., Prosecutor of the Supreme People’s Procuratorate of the People’s Republic of China Zhang Jun, Prosecutor General of the Kyrgyz Republic Zulushev K.T., Additional Attorney-General of the Islamic Republic of Pakistan Rashdeen Nawaz Kasuri, Prosecutor General of the Russian Federation Krasnov I.V., Prosecutor General of the Republic of Tajikistan Rakhmon Yu.A., Prosecutor General of the Republic of Uzbekistan Yuldashev N.T. and the SCO Secretary-General Zhang Ming.
A Protocol incorporating the deliberations of the 20th meeting of Prosecutors General of the SCO Member States was signed and adopted by the SCO Member States. The salient features of the Protocol are as under:
To strengthen cooperation between the Prosecutor General’s Offices of the SCO Member States with respect to the recovery of the proceeds of crime particularly in money laundering.
To develop cooperation between the prosecutor’s offices of the SCO member states at international institutions and forums on issues related to combating economic crimes like money laundering, search, seizure and recovery of the proceeds of crime from states.
To use the forums of bilateral and multilateral gatherings to discuss about ways to strengthen the systems in place to combat economic crimes particularly money laundering.
To continue the exchanging of information on domestic laws governing seach seizure and recovery of proceeds of crime. State’s experiences in their prevention as well as references, methodological, information-analytical, scientific and other materials in the field of combating economic crimes.
To develop cooperation between the Prosecutors General offices of the SCO member states in the field of training and advanced training of prosecutors and employees of other law enforcement agencies whose competence includes issues of combating economic crimes.
To conduct and participate in bilateral and multilateral events on combating economic crimes, search, seizure and recovery of proceeds of crime from states.
Addressing the eminent gathering of Prosecutors General from SCO Member States, Tushar Mehta, Learned Solicitor General of India highlighted the initiatives taken by the Government of India to address Transnational Economic Crimes internationally by the ratification of two UN Conventions; the United Nations Convention against Transnational Organized Crime (UNCTOC) and its three protocols and the United Nations Convention Against Corruption (UNCAC). At the national level in order to stop the threat of Transnational Economic Crimes, India has implemented a number of legislative measures over the years to prevent, detect, and penalise money laundering by specialised legislation namely Prevention of Money Laundering Act, 2002 (PMLA), Foreign Exchange Management Act, 1999 (FEMA), The Fugitive Economic Offenders Act, 2018 (FEOA) and the Companies Act, 2013.
Tushar Mehta also underlined the vital role of Mutual Legal Assistance Treaties/Agreements for the cases where it is necessary to gather information and conduct formal investigations abroad with the help of foreign government, when the accused person(s) has fled the country after committing a crime, or when a part or the entire crime was committed outside the country.
In order to seek aid in pursuing such crimes India has signed Mutual Legal Assistance Agreements to request assistance in investigating such crimes. India has signed Extradition Treaties/Agreements with 47 and 11 countries respectively and Mutual Legal Assistance Treaties/Agreements with 42 nations to seek assistance in the investigation of such instances.
In his concluding remarks, Shri Tushar Mehta, Learned Solicitor General of India, expressed his gratitude to all participating member states and urged them to work together to broaden the scope of the activities of the forum and eliminate the threat of transnational economic crimes by enhancing mutual trust, understanding, cooperation and communication between the member states.
The next (21st) meeting of the Prosecutors General of the SCO Member States will be held in the People’s Republic of China in 2023.

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Policy & Politics

India’s Rice availability position is comfortable

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India’s Rice availability position is comfortable

With the amendment in export policy of Broken Rice from “free” to Prohibited”, Government of India has successfully ensured domestic food security, availability of domestic feed for poultry and cattle feed, while keeping a check over inflation as well as domestic price of rice.
Export policy of broken rice has been amended in order to ensure adequate availability of broken rice for consumption by domestic poultry industry and for other animal feedstock; and to produce ethanol for successful implementation of EBP (Ethanol Blending Programme) program.
Due to various reasons, there was need for amending the Policy.
Domestic price of broken rice, which was Rs. 16/Kg in the open market has increased to about Rs. 22/Kg in States because of exports due to higher international prices. Poultry sector and animal husbandry farmers were impacted the most due to price hike of feed ingredients as about 60-65% inputs cost for poultry feed comes from broken Rice and any increase in prices will be reflected in poultry products like Milk, Egg, Meat etc. which resulted in food inflation.
There has been a rise in global demand for broken rice due to geo-political scenario which has impacted price movement of commodities including those related to animal feed. The export of broken rice has increased by more than 43 times in past 4 years (21.31 LMT exported from April-August, 2022 compared to 0.41 LMT in the same period in 2018-19).
The export share of Broken Rice significantly increased to 22.78% as compared to the 1.34% corresponding period of 2019. From the year 2018-19 (FY) to 2021-22 (FY) export of Total Broken Rice increased by 319%.
Some countries (who never imported broken rice from India) have tapped into Indian market to exploit the situation at the cost of Indian consumers.
The government has not made any changes in the policy relating to par-boiled rice (HS CODE = 1006 30 10) and Basmati rice (HS CODE = 1006 30 20).
Parboiled Rice and Basmati Rice constitute around 55% of total rice export from India. So, the farmers will continue to get good remunerative prices and dependent/vulnerable countries will have adequate availability of par-boiled rice as India has significant share in the global rice export.
In domestic production, 60-70 LMT estimated production loss was earlier anticipated. Now, production loss of 40-50 LMT is expected and production output is not expected to be higher this year but only at par with previous year.
Notably, 217.31 LMT rice is in Government buffer stock which is higher than the buffer stock norm. In the upcoming Kharif Season, 510 LMT and in Rabi Season, 100 LMT of rice will be procured. The buffer stock maintained by the country is more than enough to meet the demand for the public distribution system. The Government intervention by prohibiting export of broken rice and imposing 20% duty on the export of basmati and non-par boiled rice will further help in containing the situation.
India commands 40% share in the global rice trade, exported 21.23 MMT of rice in 2021-22 fiscal as against 17.78 MMT in the previous year. Due to the current geo-political situation, the international price of rice was lucrative leading to high export of rice as compared to previous year.
Due to surplus stock of rice, the domestic price of rice will be under control as compared to international market and neighbouring countries where the price is comparatively high. The percentage increase in the MSP of paddy in last year was 5.15% (Rs.2040/qtl. in 2022-23 and Rs. 1940/qtl. in 2021-22). The actual increase in price of rice is around 3%, due to increase in MSP and other input costs. The domestic price of rice is in comfortable position and the prices will remain well under control.
All India Domestic Wholesale prices of Rice and Wheat decreased by 0.08% and 0.43% respectively over the week. Retail price of Sugar is showing a decrease of 0.19% over the week.

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